The Termination of Jurisdiction Over the Person and the Offense

• Author: Captain William A. Zeigler
• Pages: 05

I. INTRODUCTION

Courts-martial are created and empowered by express statute and 'I. . . can exercise jurisdiction over such persons and offenses only as are constitutionally brought by statute within their cognizance."' Articles 2$ and 33 of the Uniform Code of Military Justice' are congressional statutory grants of courts-martial jur.isdictian over certain stated clauses of persons. A literal reading of these articles, however, will not alivvays answer the question whether a court-martial has jurisdiction to try the accused person.

For example-a soldier steals $26 from a fellow soldier. Several days later the perpetrator of the offense completes his term of enlistment and is honorably discharged, without his crime having been discovered. A few days later he re-enlists in the Army and is returned to the post at which he was discharged. The commission of the offense is then discovered.

Article 2(1) of the code provides that a person "belonging to a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment . , ." is subject to the code.

*This artlcle was adapted from a thesls presented to The Judge Advocate Genemi's School, U.S. Army, Chsrlotteslille, Vlrmma, while the author was a member 01 the Eighth Adraneed Class. The opmiom and ~ o n ~ l u ~ i o n i pre- sented hireln are those sf the author and do not necessarily represent the VIIBWLI of The Judge Advocate Qeneral'r School nor nny ofher governmental

.*JAGC, US. Army; member of the Bar of the Supreme Court of Pmns).l- XWlnthrop. M21itaw Low on& Precedent8 (26 Ed., 1520 reprlnf) 88. a10 u.9 c. 802..I0 U.S.C.

?ani%: gradvate of the Dloklnson School ol Law.

803.

lUnllorm Code of Yilitary Justfoe, Act of 5 hlay 1960, 10 U.S.C. 801-940. Hsminalter thla statute will be referred to 8% the "eade'' unless Dtheiwiae lndlcsted In ths context.

100 UWB 1SO

The soldier described above was subject to the code when he committed the offense. He is presently a membr of B "regular component." The provisions af Article 2(1) would seem to indicate that a court-martial would have jurisdiction to try the accused for the offense committed in the prior enlistment. Certainly no provision of the code by its express terms would dictate a con-clusion that the court-martial does not have jursdiction. Although this matter will be covered in Chapter 11, it is appropriate to state here that the general rule contained in paragraph 11 of the Manual for Courts-Martial, United States, 1951,' would require a finding that a court-martial had no jurisdiction to try the accused far the larceny committed during his prior enlistment.

In the succeeding paragraphs the author has propounded certain questions, the answers to which will be found in the final chapter.

A person enlists in the military service for a period of three years. Prior to the expiration of that term of service he requests and is granted a discharge for the convenience of the government for the purpose of immediate re-enlistment. Is he subject to court-martial jurisdiction for an offense committed prior to the honorable discharge?

A serviceman is serving under an indefinite term enlistment. After serving the minimum three years he requests discharge for the purpose of immediate reenlistment. If discharged and immediately re-enlisted, is he subject to court-martial jurisdiction far an offense committed prior to the disharge?

The same serviceman submits an unqualified resignation after serving three years. The resignation is accepted and he is honorably discharged. Immediately after being handed his discharge certificate he has a change of heart concerning military service and re-enlists. Is he subject to court-martial jurisdiction for an offense committed prior to the honorable discharge?

A person enlists in the Army for three years. He completes the three years' service on 30 November. After receiving his honorable discharge certificate, he also has a change of heart and re-enlists as soon as the recruiting office opens on 1 December. Is he subject to court-martial jursidietion far an offense committed prior to discharge? Suppose prior to discharge he made known to the military authorities his intention to re-enlist and was, there- 'Manu1 for Courts.Martlal, Unlted Stales. 1851. 10m Dramul%ated by Exern. tlve Order 10214, 8 February 1851. and %,I11 herslnafler be referred to as the ,'manual" unless atherwise lndleafed In the context.

140 *oo ,LIB

THE TERMINATION OF JURISDICTION

fore, processed through an abbreviated discharge procedure and did not actually receive the discharge certificate until after reenlisting. Do these factors bear on the question of court-martial jurisdiction over an offense committed in the prior enlistment?

Article 2(7) of the code states that a person "in the custody of the armed forces serving a sentence imposed by a court-martial" is subject to the code.e (Emphasis added,) Paragraph llb of the manual provides that such a person remains subject to military jurisdiction. (Emphasis added.) Are these provisions in confiict? Is a person who has been dishonorably discharged from the military service and who is confined in the custody of the armed forces a8 a general prisoner subject to trial by court-martial far an offense committed while on active duty prior to such discharge?

A serviceman overseas commits murder. Prior to his discovery as the perpetrator, he returns to the United States and is honorably discharged because of expiration of his term of enlistment. He returns to his home town and secure8 employment when he is apprehended by military police far the murder. Is he subject to court-martial jurisdiction? Suppose that this ex-serviceman tries for several weeks to secure civilian employment but is unable to find a suitable position. One manth after discharge he re-enlists in the Army. Is he subject to court-martial jurisdiction for a murder or any offense committed prior to his discharge?

Another patriotic individual enlists in the Army for a period of three years, After completing eight weeks of basic training, he makes a judicial determination that he and the Army are incompatible and deserts. Still being patriotic, he enlists in the Navy for four years and finds service therein more palatable. In fact, he serves with such distinction that the end of the four years he is honorably discharged in the grade of chief petty officer. As he is leaving the naval base with the discharge in his hand he is apprehended by agents of the Federal Bureau of Investigation as a deserter from the Army. Does the honorable discharge from the Navy preclude the Army from exercising jurisdiction and trying the man by court-martial for desertion?

Another man enlists in the Army for three years. After completing eight weeks of basic training he, too, decides that his desire for civilian life is greater than his desire to complete his enlistment. Not wishing to desert, he prepares affidavits allegedly

from third parties supporting his request for a hardship discharge. In fact, he is single and with no one dependent upon him for support. Because of these misrepresentations he receives anhonorable discharge. A >-ear later The Adjutant General receives an anonymous letter stating in substance that the "ex-serviceman" secured his discharge by falsifying the basis therefor. He is apprehended and returned to the military authorities. Can he be tried by court-matrial for having secured his discharge by fraud? Suppose he had committed larceny prior to his discharge. Can he now be tried for that offense? If so, when? Can the offense of effecting a fraudulent separation and the offense of larceny be tried by a single court-martial proceeding? Following the fraudulent discharge and prior to apprehension and return to military control, he commits robbery. Does a court-martial have jurisdiction to try him for the robbery? If the court-martial found him guilty of having fraudulently secured his discharge was he not a person subject to the code when he committed the robbery?

On 30

November, the day he is to be separated from active duty, he commits an assault and battery. His company commander places him in arrest of quarters on 30 Sovember pending trial by court-martial. As a result of this action he is not separated al-though his period of obligated active duty has expired. On l December he brings an action for a writ of habeas corpus in B

federal district court alleging that the military authorities have no jurisdiction over him because his obligated term of service has expired. Can he be held past the date of separation and subsequently tried by court-martial?

Articles 2 and 3 of the code nil1 ansxver some of the foregoing questions. It must be remembered, however, that any statutory enactment by the Congress is subject to the safeguards of the Constitution and interpretation by the courts. For example, in Cnited States ez re1 Toth v. Qz!nrlesi the United States Supreme Court invalidated Article 3(a)q of the code at least insofar as it purported to preserve jurisdiction of courts-martial over persons who had severed ail connection with the military. The possible remaining effectiveness of Article 3(a) Tdll be considered in Chapter IV.

Another man is inducted into the Army far two years.

THE TERYINATIOS OF JURISDICTION

The provisions of paragraph 11 of the manual must also be considered in some jurisdictional questions. This paragraph states a general rule regarding termination of jurisdiction and then enumerates certain exceptions thereto, some of ahich are based on the code, some of which are not.

In this connection the exact status of the manual and its provisions must be clearly understood. Article 36 of the code authorizes the President of the United States to prescribe "the procedure, including modes of proof, in cases before courts-martial

. . .which shall not be contrary to or inconsistent with this Pursuant to the authority of Article 36 and as...